Employee Monitoring: the "All-Seeing Eye"

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Apple employees have accused their employer of illegally monitoring their personal devices and iCloud accounts, an accusation that has sparked discussion about what is and is not a permissible level of monitoring.

Employee monitoring, often referred to as the "all-seeing eye," is understandably a sensitive issue for employees. Most employees are now accustomed to some workplace monitoring, but these recent accusations have uncovered a whole new level of monitoring made possible by tech innovations.   

With the rise in remote work, there has come a surge in workplace monitoring – it is estimated that the number of large firms monitoring workers has doubled since mid 2020.

Monitoring can take place in the workplace in a number of ways, such as recording on CCTV cameras, checking an employee's emails, checking phone logs, recording phone calls or checking websites employees have visited. Some monitoring programs record keystrokes or track computer activity by taking periodic screenshots.

Workplace monitoring has existed for some time, but AI is now providing employers with advanced tools to analyse employee data and evaluate their performance more effectively.

But how much is too much? When does monitoring become unlawful? When can it arguably breach employees' rights to privacy or, threaten the mutual trust in an employment relationship or raise discrimination concerns?

Apple are not alone

Apple is not the only tech company that has been accused of unlawfully monitoring its employees. Others include Amazon, which has been criticised for extensive surveillance of warehouse workers using cameras and tracking software. Tesla has been accused of monitoring employees' social media activities and emails and using security personnel to track unionisation efforts. Google has been accused of using surveillance tools to monitor internal communications and discourage unionisation.

Given the recent technology explosion in the area, which has enabled extensive monitoring capabilities, this will likely be a significant talking point for employers and employees for months to come as tech becomes more readily available and not just to the tech giants.

This situation highlights important considerations regarding employee monitoring and the legal framework governing such practices in the UK.

Employee Monitoring – what does it cover?

Employee monitoring covers various activities, including:

• Tracking emails, internet usage,
• Monitoring physical movements through CCTV
• Using software to track productivity and behaviour

While employers may argue that monitoring is necessary for security, productivity, or compliance reasons, it must be balanced against employees' rights to privacy.

What does UK Employment Legislation say about monitoring employees?

In the UK, there isn't a specific data privacy law that directly addresses the monitoring of employees by employers. Therefore, we have to piece together various pieces of legislation and case law to work out when and how employee monitoring is permissible.

The key pieces of legislation are the Data Protection Act 2018 and the General Data Protection Regulation (GDPR), which provide the primary legal framework for monitoring employees. These laws require that any monitoring be lawful, fair, and transparent.

Employers must have a legitimate reason for monitoring and must inform employees about the nature, extent, and purpose of the monitoring.

The Information Commissioner's Office (ICO) has published guidance to ensure monitoring is conducted lawfully and fairly.

 Key principles include:

1. Transparency: Employers must clearly communicate their monitoring policies to employees. This includes detailing what is being monitored, how the data will be used, and the reasons for monitoring.
2. Proportionality: Monitoring should be proportionate to the issue it aims to address. Excessive monitoring can be deemed intrusive and may violate privacy rights.
3. Necessity: Employers must demonstrate that monitoring is necessary for a specific purpose, such as ensuring security or compliance with legal obligations.

Employee Rights and Responsibilities

 Employees should be aware of their rights under UK law. If they feel that monitoring is excessive or intrusive, they can take several steps:

1. Review Employment Contracts and Policies: Employees should check their contracts and the company's monitoring policy. Employers are required to outline their monitoring practices in these documents or accompanying policies.
2. Raise Concerns Internally: If employees believe that monitoring is unfair, they should first raise their concerns with their employer via HR. This can often lead to a resolution without escalating the issue. However, if the issue is not resolved, consider raising a grievance or whistleblowing complaint.
3. Seek External Advice: If internal discussions do not resolve the issue, employees can seek advice from external bodies such as employment lawyers, the ICO, Acas, or trade unions.

Balancing Interests

Employers might feel empowered by technology, but they must carefully consider the implications of implementing monitoring initiatives.

There is a significant risk that such actions could not only amount to breaches of various pieces of legislation but also their obligations towards employees. This includes the implied duty of trust and confidence inherent in all employment contracts, which, in certain circumstances, could permit an employee to assert that their employer's actions amount to a repudiatory breach of their employment contract.

Not only this, but depending on the circumstances, such monitoring could amount to discriminatory treatment in violation of the Equality Act 2010.

In short, abusing or misusing tech monitoring apparatus could open up a raft of potential employment claims against you as an employer.

I expect we will hear more stories on this topic over the coming months. Watch this space.

Feel free to Get In Touch if you are concerned about potential unlawful monitoring in your workplace Ruby.Dinsmore@Penningtonslaw.com

For more information on my employment law practice see my Penningtons profile here. https://bit.ly/RubyDinsmore

You can also find more information on the advice we at Penningtons provide for senior executives here: https://bit.ly/Senior-Executive-Employment

Ruby Dinsmore Employment Lawyer (UK)

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